Citation NR: 9724415
Decision Date: 07/15/97 Archive Date: 07/25/97
DOCKET NO. 92-12 169 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUES
1. Entitlement to an increased evaluation for bronchial
asthma, currently evaluated as 60 percent disabling.
2. Entitlement to a total rating for compensation on the
basis of individual unemployability.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellan
ATTORNEY FOR THE BOARD
D. Pickard, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1951 to March
1954.
This appeal arises before the Board of Veterans’ Appeals
(Board) of the Department of Veterans Affairs (VA) from a
rating decision of November 1990 from the San Juan, Puerto
Rico, Regional Office (RO). The case was previously before
the Board in December 1992, when it was remanded for
additional records and examination of the veteran. The
requested development has been completed to the extent
possible. The Board now proceeds with its review of the
appeal. The issues on appeal concern entitlement to an
increased evaluation for bronchial asthma and entitlement to
a total rating for compensation on the basis of individual
unemployability.
In view of the Board’s grant of a100 percent disability
rating for the veteran’s service-connected bronchial asthma,
as discussed below, his claim for a total rating based on
individual unemployability is rendered moot.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in essence, that his service-
connected bronchial asthma has become more severe and
therefore he is entitled to an increased evaluation for this
disability
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports the
veteran’s claim for an increased evaluation for bronchial
asthma.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran’s claim has been developed.
2. The veteran’s bronchial asthma is primarily manifested by
very frequent asthmatic attacks, with severe dyspnea on
slight exertion between attacks, marked loss of weight, and
other evidence of severe impairment of health. It is
productive of pronounced impairment.
CONCLUSION OF LAW
The criteria for a 100 percent rating for bronchial asthma
are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991 & Supp.
1996); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6602 (1996)
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends that his service-connected bronchial
asthma is more severely disabling than currently evaluated.
Such contention in light of the records on file constitutes a
well-grounded claim. See Proscelle v. Derwinski, 2 Vet.App.
629 (1992); see also 38 U.S.C.A. § 5107(a) (West 1991 & Supp.
1995). The Board is satisfied that all relevant facts have
been properly developed. No further assistance to the
veteran is required to comply with the duty to assist
mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1
Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90
(1990).
Disability ratings are intended to compensate reductions in
earning capacity as a result of the specific disorder. The
ratings are intended to compensate, as far as can practicably
be determined, the average impairment of earning capacity
resulting from such disorder in civilian occupations. 38
U.S.C.A. § 1155 (West 1991 & Supp. 1996).
The veteran’s service-connected asthma is rated under the
criteria for bronchial asthma in VA’s Schedule for Rating
Disabilities. 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6602
(1996). The veteran’s current 60 percent disability
evaluation for his service-connected asthma contemplates
frequent attacks of asthma (one or more attacks weekly) and
marked dyspnea on exertion between attacks with only
temporary relief by medication, and with more than light
manual labor precluded. A 100 percent rating is assigned
when bronchial asthma is pronounced, with very frequent
asthmatic attacks, with dyspnea on slight exertion between
attacks and with marked loss of weight or other evidence of
severe impairment of health. 38 C.F.R. § 4.97, Diagnostic
Code 6602 (1996). Where there is a question as to which of
two evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7 (1995).
The Board has carefully reviewed the pertinent medical
evidence, including the veteran’s entire medical history. 38
C.F.R. § 4.1 (1995); Peyton v. Derwinski, 1 Vet.App. 282
(1991). Given the rather significant symptomatology
associated with the veteran’s disability, the Board finds
that the recent medical treatment records for his bronchial
asthma show that the severity of that disability warrants
assignment of a 100 percent evaluation under Diagnostic Code
6602.
A medical report of January 1997 from Dr. Rafael J. Deliz
states that the veteran had three emergency room visits for
his asthma in the preceding year, and that he has a nurse at
his home administering intravenous drugs in an attempt to
reduce hospital visits. The report further notes that the
veteran has expiratory wheezes or rhonchi on every outpatient
physical examination. The letter describes the main symptom
as dyspnea, mostly on exertion by walking, bathing or getting
dressed. The veteran’s asthma is described as severe and
disabling.
Medical records of May 1995 demonstrate that the veteran has
severe chronic bronchial asthma which requires frequent
doctors visits. The veteran is on a variety of medications
for asthma, exhibits severe dyspnea and has an acute crisis
on a nearly weekly basis. The medical evidence of record
displays that the veteran has lost over 20 pounds in the last
several years.
VA medical examinations have found that the veteran has two
to three asthma attacks per week, suffers from dyspnea on
exertion and has a mild chronic cough which is mostly dry.
The veteran testified at his personal hearing that he has
asthma attacks approximately twice per week and that he
requires therapy every four to six hours. He further
testified that, while at home, he requires injections with
serum and daily respiratory therapy using a compressor. The
veteran uses the compressor every four to six hours and
states that he has been told by his doctor that his asthma
medicine is also producing high blood pressure. He also
testified that his asthmatic condition has prevented him from
obtaining or maintaining gainful employment.
The Board notes that a May 1995 private medical statement
indicates that the veteran “is unable to work, any kind of
work at present, because of daily requirements of inhalation
therapy and frequent acute crisis.”
Based on the foregoing, the Board concludes that the
disability picture presented demonstrates pronounced
impairment, and supports an evaluation of 100 percent as set
forth under diagnostic code 6602. 38 C.F.R. § 4.7, 4.97,
Diagnostic Code 6602 (1996).
As a 100 percent rating has been established for the
veteran’s asthmatic condition, the issue of a total rating
due to unemployability is now moot.
ORDER
An increased disability rating of 100 percent for bronchial
asthma is granted, subject to the governing regulations
pertaining to the payment of monetary benefits.
MICHAEL S. SIEGEL
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States
(CONTINUED ON NEXT PAGE
Court of Veterans Appeals within 120 days from the date of
mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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